R v. Vance ; ex parte A-G (Qld) - [2007] QCA 269

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vance; ex parte A-G (Qld) [2007] QCA 269

PARTIES:

R
v
VANCE, Paul David
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 76 of 2007
DC No 91 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

24 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2007

JUDGES:

de Jersey CJ, Keane JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. That the sentence imposed in the District Court on
13 March 2007 be set aside and that it be ordered in lieu:
    (a) that the respondent be imprisoned for three years,
     suspended after a period of 12 months for an
     operational period of three years; and
     (b) that the respondent be disqualified from holding or
     obtaining a driver's licence for a period of five years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent pleaded guilty to dangerous operation of a motor vehicle causing death – where respondent 20 years of age with minor criminal and traffic history – where respondent drove while grossly fatigued – where respondent had no recollection of collision with cyclist, and failed to stop at the scene, coming forward more than two days later – where sentencing Judge reduced time to be served because of respondent’s youth, remorse and steps towards rehabilitation – where respondent sentenced to two years’ imprisonment suspended after six months for an operational period of two years – whether sentence imposed manifestly inadequate

R v Gruenert; ex parte A-G (Qld)[2005] QCA 154; CA No 439 of 2004, 13 May 2005, distinguished
R v Hardes[2003] QCA 47; CA No 393 of 2002, 18 February 2003, followed
R v Harris; ex parte A-G (Qld)[1999] QCA 392; CA No 161 of 1999, 21 September 1999, distinguished
R v Lacey[2005] QCA 431; CA No 292 of 2005, 23 November 2005, considered
R v McGuigan[2004] QCA 381; CA No 285 of 2004, 15 October 2004, distinguished
R v Proesser[2007] QCA 61; CA No 19 of 2007, 5 March 2007, considered

COUNSEL:

M J Copley for the appellant
C F C Wilson for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Buckland Criminal Lawyers for the respondent

THE CHIEF JUSTICE: The respondent pleaded guilty to the dangerous operation of a motor vehicle at the Gold Coast on the 30th of April 2006 causing the death of Allan Keith Scott. The respondent was sentenced to two years' imprisonment suspended after six months for an operational period of two years and he was disqualified from holding or obtaining…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] QCA 269
Decision Date: 24 July 2007

CaseChat Overview and Summary

In the matter of R v. Vance, the respondent faced a charge of dangerous operation of a motor vehicle resulting in death. The respondent, who was 20 years old at the time of the offence, had a minor criminal and traffic history. The incident occurred while the respondent was grossly fatigued and he had no recollection of the collision with a cyclist. He failed to stop at the scene and came forward more than two days later. The respondent pleaded guilty to the charge. The legal dispute centred on the adequacy of the sentence imposed by the District Court. The Attorney-General of Queensland appealed the sentence, arguing it was manifestly inadequate.

The key legal issue before the court was whether the sentence imposed by the District Court was manifestly inadequate. The sentencing judge had taken into account the respondent's youth, remorse, and steps towards rehabilitation, and imposed a sentence of two years' imprisonment, suspended after six months, for an operational period of two years. The court was required to determine if this sentence was manifestly inadequate in light of the circumstances and seriousness of the offence.

The court considered the nature of the offence, the respondent's age, his remorse, and his steps towards rehabilitation, but ultimately found the sentence to be manifestly inadequate. The court noted that the respondent drove while grossly fatigued and failed to stop at the scene, which demonstrated a significant degree of recklessness. The court also emphasised the gravity of the offence, as it resulted in the death of a cyclist. The court concluded that the sentence did not adequately reflect the seriousness of the offence and the need for general deterrence. Accordingly, the appeal was allowed, and the sentence was set aside. The court ordered that the respondent be imprisoned for three years, suspended after a period of 12 months, for an operational period of three years, and be disqualified from holding or obtaining a driver's licence for a period of five years.

Orders

Orders of the court

1. Appeal allowed

2. That the sentence imposed in the District Court on

13 March 2007 be set aside and that it be ordered in lieu:

(a) that the respondent be imprisoned for three years,

suspended after a period of 12 months for an

operational period of three years; and

(b) that the respondent be disqualified from holding or

obtaining a driver's licence for a period of five years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Vance; ex parte A-G (Qld) [2007] QCA 269
PARTIES:	R v VANCE, Paul David (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 76 of 2007 DC No 91 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Southport
DELIVERED EX TEMPORE ON:	24 July 2007
DELIVERED AT:	Brisbane
HEARING DATE:	24 July 2007
JUDGES:	de Jersey CJ, Keane JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. That the sentence imposed in the District Court on 13 March 2007 be set aside and that it be ordered in lieu: (a) that the respondent be imprisoned for three years, suspended after a period of 12 months for an operational period of three years; and (b) that the respondent be disqualified from holding or obtaining a driver's licence for a period of five years.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent pleaded guilty to dangerous operation of a motor vehicle causing death – where respondent 20 years of age with minor criminal and traffic history – where respondent drove while grossly fatigued – where respondent had no recollection of collision with cyclist, and failed to stop at the scene, coming forward more than two days later – where sentencing Judge reduced time to be served because of respondent’s youth, remorse and steps towards rehabilitation – where respondent sentenced to two years’ imprisonment suspended after six months for an operational period of two years – whether sentence imposed manifestly inadequate R v Gruenert; ex parte A-G (Qld)[2005] QCA 154; CA No 439 of 2004, 13 May 2005, distinguished R v Hardes[2003] QCA 47; CA No 393 of 2002, 18 February 2003, followed R v Harris; ex parte A-G (Qld)[1999] QCA 392; CA No 161 of 1999, 21 September 1999, distinguished R v Lacey[2005] QCA 431; CA No 292 of 2005, 23 November 2005, considered R v McGuigan[2004] QCA 381; CA No 285 of 2004, 15 October 2004, distinguished R v Proesser[2007] QCA 61; CA No 19 of 2007, 5 March 2007, considered
COUNSEL:	M J Copley for the appellant C F C Wilson for the respondent
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Buckland Criminal Lawyers for the respondent